J-A04042-15


                             2015 PA Super 86

TIMOTHY J. STEWART,                     :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                 Appellant              :
                                        :
                   v.                   :
                                        :
FEDEX EXPRESS AND FEDERAL               :
EXPRESS CORPORATION,                    :
                                        :
                 Appellees              :        No. 1104 WDA 2014

               Appeal from the Order Entered June 24, 2014
              in the Court of Common Pleas of Beaver County
                    Civil Division, at No(s): 11222-2013

BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:                        FILED APRIL 17, 2015

     Timothy J. Stewart (“Stewart” or “Mr. Stewart”) appeals from the June

24, 2014 order which sustained the preliminary objections filed by FedEx

Express and Federal Express Corporation (“FedEx”), and dismissed Stewart’s

complaint. We affirm.

     The trial court summarized the facts of this case as follows.

            [Mr. Stewart] was employed at FedEx as a senior security
     specialist for almost six years, from April 9, 2007 through April
     17, 2013. On April 5, 2013, Mr. Stewart and Kelly Kraemer,
     another senior security specialist, traveled together for work
     from the FedEx Pittsburgh Ground headquarters to the FedEx
     office in Cranberry. Mr. Stewart used his [] personal vehicle for
     this trip. During their trip from one FedEx location to another,
     Mr. Kraemer asked Mr. Stewart if he could put his car keys in the
     glove compartment of Mr. Stewart’s car. Mr. Stewart gave Mr.
     Kraemer permission to put the keys in the glove box, but he
     advised Mr. Kraemer that he carried a handgun in the glove
     compartment. Mr. Stewart also informed Mr. Kraemer that he
     had a valid permit to carry a weapon. At all relevant times, Mr.


* Retired Senior Judge assigned to the Superior Court.
J-A04042-15


      Stewart maintained a Pennsylvania License to Carry Firearms
      issued by the Sheriff of Beaver County.

             A few days later, on April 10, 2013, Mr. Stewart was
      summoned to a meeting at the Pittsburgh airport.           At the
      meeting, Tom Herity, Manager of FedEx Zone Security in
      Chicago, informed Mr. Stewart that he was being investigated
      because of allegations concerning a handgun in the glove
      compartment of his car. A week later, on April 17, 2013, Mr.
      Stewart was terminated for violation of FedEx Policy 8.10, which,
      in relevant part, prohibits employees from possessing firearms or
      weapons on company property.

            Specifically, the FedEx policy provides:

            No firearms or weapons are permitted on Company
            property, in Corporate aircraft, in Company vehicles,
            or in Corporate buildings unless authorized by
            Corporate Security. Where federal, state or local
            laws impose different or additional requirements, the
            Company will abide by governing law.

             Mr. Stewart identified the policy in his Complaint. There is
      no dispute that he was terminated because of the firearm in his
      car on April 5, 2013. Following his termination, Mr. Stewart
      initiated this lawsuit against FedEx alleging wrongful discharge.
      Mr. Stewart claims that his termination violates public policy.

Trial Court Opinion, 6/24/2014, at 2-3 (citations omitted).

      FedEx filed preliminary objections in the nature of a demurrer

pursuant to Pa.R.C.P. 1028(a)(4), which the trial court sustained by order of

June 24, 2014. Stewart timely filed a notice of appeal. The trial court did

not order Stewart to file a statement of errors complained of on appeal, and

none was filed.

      Stewart presents one question for this Court’s consideration: “whether

the [trial] court wrongfully dismissed [Mr. Stewart’s] case determining a



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J-A04042-15


question of fact whether a licensed firearm in a personal vehicle’s glove

compartment is located on Mr. Stewart’s or [FedEx’s] property?” Stewart’s

Brief at 4.

      We consider Stewart’s question mindful of the following standard of

review.

            When reviewing the dismissal of a complaint based upon
      preliminary objections in the nature of a demurrer, we treat as
      true all well-pleaded material, factual averments and all
      inferences fairly deducible therefrom. Where the preliminary
      objections will result in the dismissal of the action, the objections
      may be sustained only in cases that are clear and free from
      doubt.    To be clear and free from doubt that dismissal is
      appropriate, it must appear with certainty that the law would not
      permit recovery by the plaintiff upon the facts averred. Any
      doubt should be resolved by a refusal to sustain the objections.
      Moreover, we review the trial court’s decision for an abuse of
      discretion or an error of law.

B.N. Excavating, Inc. v. PBC Hollow-A, L.P., 71 A.3d 274, 277-78 (Pa.

Super. 2013) (en banc) (quoting Ira G. Steffy & Son, Inc. v. Citizens

Bank of Pennsylvania, 7 A.3d 278, 282–83 (Pa. Super. 2010)).

      Stewart sets forth three arguments in support of his position that the

trial court erred in dismissing his complaint on preliminary objections. First,

he argues that the trial court erred in holding that FedEx could terminate

him for “no reason” when FedEx never informed him that he was terminated

for “no reason.”   Stewart’s Brief at 8.    Next, Stewart claims that the trial

court erred in ruling that FedEx could terminate him based upon an

ambiguous company policy.       Id. at 8-9.    Finally, Stewart maintains that




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FedEx’s termination of him violated an important Pennsylvania public policy,

namely, the right to bear arms. Id. at 9-15.

      This Court has summarized Pennsylvania’s at-will employment doctrine

as follows.1

      “In Pennsylvania, absent a statutory or contractual provision to
      the contrary, either party may terminate an employment
      relationship for any or no reason.” Weaver v. Harpster, 975
      A.2d 555, 562 (Pa. 2009). “[A]s a general rule, there is no
      common law cause of action against an employer for termination
      of an at-will employment relationship.” Id. at 563.

               An employee may bring a cause of action for a
               termination of that relationship only in the most
               limited circumstances, where the termination
               implicates a clear mandate of public policy. In our
               judicial system, the power of the courts to declare
               pronouncements of public policy is sharply restricted.
               Rather, it is for the legislature to formulate the public
               policies of the Commonwealth. The right of a court
               to declare what is or is not in accord with public
               policy exists only when a given policy is so obviously
               for or against public health, safety, morals, or
               welfare that there is a virtual unanimity of opinion in
               regard to it. Only in the clearest of cases may a
               court make public policy the basis of its decision. To
               determine the public policy of the Commonwealth,
               we examine the precedent within Pennsylvania,
               looking to our own Constitution, court decisions, and
               statutes promulgated by our legislature.

      Id. at 563 (quotation and citations omitted).

             Applying this standard, Pennsylvania courts have found
      actionable exceptions where the employee was terminated for
      filing a claim for worker’s compensation benefits, Shick v.
      Shirey, 716 A.2d 1231 (Pa. 1998); for filing a claim for
      unemployment benefits, Highhouse v. Avery Transportation,

1
  Stewart does not claim that he was employed by FedEx pursuant to a
contract.


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J-A04042-15


     660 A.2d 1374 (Pa. Super. 1995); for failing to submit to a
     polygraph test where a statute prohibited employers from so
     requiring, Kroen v. Bedway Security Agency, Inc., 633 A.2d
     628 (Pa. Super. 1993); for complying with a statutory duty to
     report violations to the Nuclear Regulatory Commission, Field v.
     Philadelphia Electric Co., 565 A.2d 1170 (Pa. Super. 1989);
     and for serving jury duty, Reuther v. Fowler & Williams, Inc.,
     386 A.2d 119 (Pa. Super. 1978).

           Courts have found no public policy exception where the
     employee was terminated as a result of sexual discrimination by
     an employer not covered by the Pennsylvania Human Relations
     Act, Weaver, supra; for complaining about violations of the
     Occupational Safety and Health Act, McLaughlin v.
     Gastrointestinal Specialists, Inc., 750 A.2d 283 (Pa. 2000);
     for expressing concerns that the employer’s product was unsafe,
     Geary v. U.S. Steel Corporation, 319 A.2d 174 (Pa. 1974); for
     disengaging an illegal surveillance system, Hineline v.
     Stroudsburg Electric Supply Co., 559 A.2d 566 (Pa. Super.
     1989), appeal denied 574 A.2d 70 (Pa. 1989); or for complaining
     about the waste of taxpayer money, Rossi v. Pennsylvania
     State University, 489 A.2d 828 (Pa. Super. 1985).

           In sum, “an employer (1) cannot require an employee to
     commit a crime, (2) cannot prevent an employee from
     complying with a statutorily imposed duty, and (3) cannot
     discharge an employee when [specifically] prohibited from doing
     so by statute.” Donahue v. Federal Exp. Corp., 753 A.2d 238,
     244 (Pa. Super. 2000) (quoting Spierling v. First Am. Home
     Health Servs., Inc., 737 A.2d 1250, 1252 (Pa. Super. 1999)).
     Outside of those categories of our legislature’s expression of
     public policy, a court may find a public policy exception that will
     sustain a wrongful termination action only if the public policy “is
     so obviously for or against public health, safety, morals, or
     welfare that there is a virtual unanimity of opinion in regard to
     it.” Weaver, 975 A.2d at 563.

Mikhail v. Pennsylvania Organization for Women in Early Recovery,

63 A.3d 313, 316-17 (Pa. Super. 2013).

     From the above it is immediately clear that Stewart’s first two

arguments warrant no relief. He has no cause of action against FedEx for


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J-A04042-15


wrongful   termination    unless    the      termination    violates    public    policy.

Therefore, it matters not whether FedEx articulated no reason or a bad

reason for terminating Stewart’s employment, whether its firearm policy is

vague, or whether Stewart’s gun was on his property or FedEx’s property

when it was in his glovebox. The only relevant question is whether Stewart

has pled that he was terminated for a reason that violates a policy of this

Commonwealth that “is so obviously for or against public health, safety,

morals, or welfare that there is a virtual unanimity of opinion in regard to it.”

Weaver, 975 A.2d at 563.

      In his complaint, Stewart claimed that his termination was in violation

of   Pennsylvania’s   public   policy   to    guard   the   rights     “of   citizens    of

Pennsylvania to protect themselves.”            Complaint, 8/7/2013, at 5.              He

averred that this policy was manifest in Article I, Section 21 of the

Pennsylvania Constitution, and in 18 Pa.C.S. § 6106.                     Stewart also

referenced in his complaint the decision of the Kentucky Supreme Court in

Mitchell v. University of Kentucky, 366 S.W.3d 895 (Ky. 2012). For the

following reasons, we hold that Stewart has failed to identify any

Pennsylvania public policy which has been violated by his termination.

      Article I, Section 21 of the Pennsylvania Constitution provides that the

“right of the citizens to bear arms in defence of themselves and the State

shall not be questioned.”       Pennsylvania Constitution, Art. I, § 21.                The

statute Stewart invokes is a provision of the Crimes Code entitled “firearms



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J-A04042-15


not to be carried without a license.”      18 Pa.C.S. § 6106.     Therein our

legislature declared, inter alia, that it is a crime to carry a firearm in a

vehicle without a valid license.

      This Court has noted that “neither the Second Amendment to the

United States Constitution, nor the Pennsylvania Constitution, bestows on

any person the right to carry a concealed firearm or transport a loaded

firearm in a vehicle.” Commonwealth v. McKown, 79 A.3d 678, 690 (Pa.

Super. 2013).     Similarly, it is evident from the language of 18 Pa.C.S.

§ 6106 that that statute criminalizing the conduct of carrying a firearm in a

vehicle without a license does not conversely create a right to carry a

licensed firearm in a car.

      In Mitchell, the plaintiff was fired for having a licensed firearm in his

car on the property of his employer, the University of Kentucky.           The

Supreme Court of Kentucky held that Mitchell “established that his discharge

was contrary to a fundamental and well-defined public policy, i.e., the right

to bear arms, as evidenced by existing statutory provisions,” in particular

K.R.S. 237.106, which provides:

      (1) No person, including but not limited to an employer, who is
      the owner, lessee, or occupant of real property shall prohibit any
      person who is legally entitled to possess a firearm from
      possessing a firearm, part of a firearm, ammunition, or
      ammunition component in a vehicle on the property.

                                    ***

      (4) An employer that fires, disciplines, demotes, or otherwise
      punishes an employee who is lawfully exercising a right


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J-A04042-15


      guaranteed by this section and who is engaging in conduct in
      compliance with this statute shall be liable in civil damages. An
      employee may seek and the court shall grant an injunction
      against an employer who is violating the provisions of this
      section when it is found that the employee is in compliance with
      the provisions of this section.

Mitchell, 366 S.W.3d at 902 (quoting K.R.S. 237.106).

      Stewart points to no Pennsylvania statute comparable to the Kentucky

statute at issue in Mitchell.      Indeed, as the trial court noted, such

legislation had been proposed, but not enacted, in Pennsylvania at the time

of Stewart’s termination.      Trial Court Opinion, 6/24/2014, at 22-25

(discussing Senate Bill 1438 (2011) and House Bill 2243 (2014)). Therefore,

the reasoning of Mitchell is inapplicable because, unlike Kentucky’s

legislature, our legislature has not declared that Pennsylvania public policy is

violated by FedEx’s termination of Stewart.

      Thus, the facts alleged in Stewart’s complaint do not establish that

FedEx (1) required him to commit a crime, (2) prevented him from

complying with a statutorily imposed duty, (3) discharged him in violation of

a statute, or (4) otherwise terminated him in violation of a public policy that

“is so obviously for or against public health, safety, morals, or welfare that

there is a virtual unanimity of opinion in regard to it.” Weaver, 975 A.2d at

563. Accordingly, Pennsylvania law does not permit recovery on the facts

averred, and the trial court properly dismissed Stewart’s complaint.

      Order affirmed.

      Judge Bowes joins the opinion.


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J-A04042-15


     Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/17/2015




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