J-S60032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PETER ROBERT SEAMON                            IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

ELMER KENNETH ACKER AND PATRICK J.
MCLAINE, ACKER ASSOCIATES INC.

                        Appellee                    No. 149 MDA 2014


            Appeal from the Order Entered December 18, 2013
           In the Court of Common Pleas of Lackawanna County
                    Civil Division at No(s): 94-CV-4378


BEFORE: OTT, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED MARCH 27, 2015

     Appellant Peter Robert Seamon (“Employee”) appeals pro se from the

order entered in the Lackawanna County Court of Common Pleas which

granted summary judgment in favor of Appellees Elmer Kenneth Acker,

Patrick J. McLaine, and Acker Associates Inc. (“Employers”). For the reasons

that follow, we reverse the trial court’s order and remand for further

proceedings.
     The relevant facts and procedural history of this appeal are as follows.

On August 19, 1992, Employee slipped and fell while in the course of his

employment with Employers.          On September 16, 1992, after Employee

presented Employers with an MRI bill, Employers fired Employee. Employers

claimed they fired Employee due to his failure to comply with company

policy, including properly reporting accidents in the workplace.    Although
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Employee did not officially file a Workers’ Compensation 1 claim until

November 9, 1992, he requested Employers to file a Workers’ Compensation

claim sometime before Employers’ response to this request on September

16, 1992. See Employers’ letter, dated September 16, 1992. Employee’s

request for Workers’ Compensation was granted.

        On October 18, 1994, Employee filed a civil action against Employers

for wrongful discharge. On November 9, 1994, Employers filed preliminary

objections, which the court sustained on January 27, 1995. On January 31,

1995, Employee filed an amended complaint.                  On February 28, 1995,

Employers filed an answer and new matter to the amended complaint.

Employee filed an answer to the new matter on March 31, 1995, and filed

discovery motions on February 27, 1997, March 2, 1999, and August 9,

1999.

        The   Workers’    Compensation         Appeal   Board   adds   some   relevant

procedural history:

          On April 1, 2002, [Employers2] filed a petition for physical
          examination or expert interview of Employee – Section 314
____________________________________________


1
  The Pennsylvania legislature enacted the Workmen’s Compensation Act in
1915 to apply to work-related injuries in the Commonwealth. In 1993, the
legislature amended the Act to read “The Workers’ Compensation Act.” 77
P.S. § 1. For clarity, we will reference “Workers’ Compensation” throughout
this Memorandum.
2
  Only Employer Acker Associates was listed as part of the proceedings
before the Workers’ Compensation Appeal Board.




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          (Physical Exam Petition) alleging that it scheduled an
          examination with Scott A. Krasner, M.D. and on March 21,
          2002, [Employee] refused or failed to appear.[3] The
          [Workers’ Compensation Judge (“WCJ”)] found that
          [Employee] filed a penalty petition alleging that
          [Employers were] deliberately sending his compensation
          checks to an incorrect address.      On April 23, 2002,
          [Employee] filed a penalty petition alleging that
          [Employers] submitted fraudulent evidence regarding his
          average weekly wage. [Employee] also filed a modification
          petition alleging fraud.        On September 28, 2005,
          [Employers] filed a physical exam petition alleging that
          [Employee] did not appear for an examination on March
          21, 2002 and requesting the WCJ order [Employee] to
          attend an examination with a doctor to be named. On
          October 14, 2005, [Employers] filed another physical exam
          petition with similar allegations.

          On November 7, 2005, the WCJ circulated a decision and
          order granting [Employers’] petition and denying
          [Employee’s] petitions. The WCJ concluded that because
          [Employers’] last examination of [Employee] was more
          than six months ago, it was entitled to an examination.
          The WCJ indicated that [Employers] had recently filed a
          suspension petition which would be scheduled for hearing
          to determine if [Employee] failed to appear for an
          examination, and if [Employee] failed to appear for the
          examination or hearing, his benefits would be suspended.
          [Employee] appealed.

          On October 13, 2005, prior to the issuance of the
          November 7, 2005 decision and order, [Employers] had
          filed a suspension petition alleging that [Employee]
          refused to attend an independent medical examination
          ([“IME”]) ordered by the WCJ in 2001.

Workers’ Compensation Appeal Board Opinion, filed September 1, 2010, at

1-2.

____________________________________________


3
    Employee moved to Arizona in 1994.



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       On December 23, 2005, the WCJ granted Employers’ petition for

suspension of benefits.        After remanding the case to the WCJ for further

fact-finding and determining Employee did not attend the IME, the Workers’

Compensation Appeal Board affirmed the decision of the WCJ on September

1, 2010. See id. at 3-14.

       In early 2011, Employee initiated further discovery requests in the

wrongful discharge action. On April 1, 2011, Employers filed a petition for

judgment of non-pros in that action based on Employee’s inaction over

several years. Employee answered the petition on April 25, 2011. On May

19, 2011, when Employee failed to appear in court, the court granted

Employers’ petition for non-pros. On June 2, 2011, Employee filed a motion

to vacate the order and appealed to the Commonwealth Court, claiming he

was not given notice of the hearing.

       On July 2, 2012, the Commonwealth Court quashed Employee’s appeal

and remanded it to the trial court to determine whether Employee was given

proper notice of the hearing.4

____________________________________________


4
  In its opinion, the Commonwealth Court noted that “the trial court, not
[the Commonwealth Court], is the proper forum to determine, factually,
whether [Employee’s] assertion that he did not receive notice of the May 19,
2011 hearing is true.” Commonwealth Court Opinion, filed March 14, 2012,
at 8-9. In a footnote, the Commonwealth Court proceeds to add, “if, on
remand, the trial court denies [Employee’s] petition to strike and [Employee]
takes an appeal therefrom, said appeal should be filed with the Superior
Court pursuant to Section 742 of the Judicial Code, 42 Pa.C.S. § 742.” Id.
at 9, n. 6.



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J-S60032-14



       On April 9, 2013, Employers filed a praecipe for a hearing on the issue

of notice and an alternative motion for summary judgment, which is the

subject of this appeal.        On December 18, 2013, the trial court granted

summary judgment to Employers. The court found no issues of material fact

and determined that Employee failed to “identify a claim for wrongful

termination.”       Trial Court Order Granting Summary Judgment, filed

December 18, 2013, at 7.

       On January 21, 2014, Employee filed a notice of appeal.5        The trial

court did not order Employee to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Employee did

not file one. On November 24, 2014, this Court ordered the trial court to file

an opinion pursuant to Pa.R.A.P. 1925(a) within 30 days.        On January 2,

2015, the trial court submitted its December 18, 2013 order and opinion

granting Employers’ summary judgment motion in lieu of drafting a separate

Rule 1925(a) opinion.6
____________________________________________


5
  Although the filing date of Employee’s notice of appeal is facially untimely,
Employee claims the court erred by not filing it upon receipt. The notice of
appeal was dated and post marked on January 15, 2014; thus we consider it
timely. See Maxton v. Philadelphia Hous. Auth., 454 A.2d 618, 620
(1982) (noting courts have power to extend statutory appeal time when
presented with fraud or some breakdown in the court’s operation); See also
Jackson ex rel. Sanders v. Hendrick, 746 A.2d 574, 577 (2000) (“equity
enjoys flexibility to correct court errors that would produce unfair results.”).
6
  Because the certified record was incomplete, this Court directed the trial
court to compile a certified record pursuant to Pa.R.A.P. 1921, or copies of
the record agreed upon by both parties pursuant to Pa.R.A.P. 1924 and
(Footnote Continued Next Page)


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J-S60032-14



      Employee raises the following issues for our review:

          I.     WHETHER IT IS CLEAR THAT THE [TRIAL COURT]
                 HAS MISAPPREHENDED AND/OR MISINTERPRETED
                 THE EVIDENCE UPON WHICH IT BASED ITS OPINION
                 AND   ORDER,   AND   REACHED   CONCLUSIONS
                 CONTRADICTED BY, OR UNSUPPORTED BY ANY
                 COMPETENT EVIDENCE IN THE RECORD?

          II.    WHETHER IT IS CLEAR THAT THE COURT BELOW
                 HAS MISAPPLIED OR MISINTERPRETED THE LAW,
                 OR COMMITTED ERRORS OF LAW IN REACHING ITS
                 DECISION, AND VIOLATED [EMPLOYEE’S] DUE
                 PROCESS RIGHTS AS SPECIFICALLY DOCUMENTED
                 IN [EMPLOYEE’S] REQUESTING DETERMINATION OF
                 FINALITY    AND     RECONSIDERATION     AND
                 CLARIFICATION BY THE COURT TO AMEND OR
                 CORRECT THE INCOMPLETE DECEMBER 18, 2013
                 OPINION AND ORDER OF SENIOR JUDGE RICHARD
                 SAXTON, W/EXHIBITS?

          III.   WHETHER THE GRIEVOUS MISHANDLING OF
                 [EMPLOYEE’S] FILINGS AND THE DOCKET FILING OF
                 RECORD AS DOCUMENTED IN [EMPLOYEE’S]
                 OBJECTIONS FILED WITH THE SUPERIOR COURT
                 ILLUSTRATE THE NECESSITY FOR THIS COURT TO
                 DETERMINE WHETHER THE CASE IS SO EGREGIOUS
                 AS   TO    JUSTIFY   PREROGATIVE   APPELLATE
                 CORRECTION OF THE EXERCISE OF DISCRETION BY
                 THE LOWER TRIBUNAL?

          IV.    WHETHER [EMPLOYEE’S] DUE PROCESS RIGHTS
                 HAVE BEEN VIOLATED, WHERE EXAMINATION OF
                 THE EVIDENCE CITED BY THE COURT PLAINLY
                 REVEALS   THAT   THE   COURT  HAS    ACTED
                 EGREGIOUSLY, AND WHETHER THE COURT HAS
                 FAILED TO CONDUCT ANY MEANINGFUL REVIEW OF
                       _______________________
(Footnote Continued)

Pa.R.A.P. 1923. The trial court proceeded to compile, certify and submit a
supplemental record, pursuant to Pa.R.A.P. 1926(b)(1).




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J-S60032-14


                [EMPLOYEE’S] ANSWER, BRIEFS, PLEADINGS AND
                EVIDENCE?

         V.     WHETHER [EMPLOYEE’S] DUE PROCESS HAS BEEN
                VIOLATED WHERE ALL OF [EMPLOYEE’S] PLEADINGS
                BEFORE THE COURT BELOW WERE MISHANDLED
                AND   DISMISSED    WITHOUT   ANY   HEARINGS,
                TELECONFERENCE, BRIEFS OR OPPORTUNITY FOR
                [EMPLOYEE] TO BE HEARD, OR TO MAKE A RECORD,
                AND THUS RENDERS IMPOSSIBLE TO DISCERN
                LEGAL BASIS OR REASONING FROM THE [TRIAL
                COURT]?

         VI.    WHETHER THE SIGNATURES ON THE FOUR ORDERS
                ENTERED IN THE [TRIAL COURT], WHETHER IN INK
                OR BY PHOTOCOPY[,]    REFLECT TWO OR MORE
                UNAUTHORIZED SIGNATORIES?

         VII.   WHETHER A DISMISSAL OF MOTION FOR SUMMARY
                JUDGMENT MAY BE UPHELD AS VALID WHERE
                LEGITIMATE  DISCOVERY   EFFORTS   ARE  NOT
                PERMITTED TO BE COMPLETED, AND MORE
                EGREGIOUS, DISMISSED WITHOUT DUE PROCESS?

Employee’s Brief at 1-2.

      Although Employee purports to raise seven issues in his pro se

appellate brief, we need only address one issue, as it is dispositive:    this

Court must determine whether the trial court abused its discretion in finding

no issues of material fact as to whether Employee’s termination was a

retaliatory discharge.

      Employee argues that Employers terminated him in retaliation for filing

a Workers’ Compensation claim.       Employers, however, claim that they

properly terminated his employment for failure to comply with work

procedures. Specifically, Employers allege in their brief that Employee “was

fired for continuing not to follow the company dictated rules about having his

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J-S60032-14



supervisor sign his notice of injury, as he had done in the past.” Employers’

Brief at 7.     Employers contend that the “undisputed and incontrovertible”

fact that the Workers’ Compensation claim was not filed until November 9,

1992, after Employee had already been fired, precludes the possibility that

Employee’s termination of employment was retaliation for a Workers’

Compensation claim.         Employee, however, directs us to two letters from

Employers to Employee, both dated September 16, 1992.          The first letter

reads:

          Dear Peter,

          After review of your handwritten note, which I received on
          my desk today and consulting our lawyer and insurance
          company, I will submit your claim to Workman
          Compensation for their review.[7] I will notify them
          that you did not report your injury to your supervisor or
          have any written documentation of your injury till six (6)
          days later when you attached a note to the back of your
          time sheet, unsigned by a supervisor and not dated. I will
          tell them that in the past two (2) times of your reporting
          an injury, you had a supervisor sign your reports both
          times ((5-5-92) and (6-13-91).

          Sincerely,

          Peggy McLaine

       The second letter reads:

          Dear Peter,



____________________________________________


7
    Emphasis added.



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J-S60032-14


          This is notification of your termination from Acker
          Associates at the end of this business day (September 16,
          1992), due to your numerous violations of office
          procedures and your lack of proper work attitude.

          We will notify the Pennsylvania Higher Education
          Assistance Agency that you are no longer employed by us,
          and they will have to make other arrangements to garnish
          your pay.[8]

       Both letters are in the supplemental record, attached to Employee’s

“Brief and Statement of Facts in Opposition to [Employers’] Motion for

Summary Judgment.”          We now determine whether the trial court erred in

granting summary judgment in favor of Employers.

       “Our scope of review of a trial court’s order granting or denying

summary judgment is plenary[.]” Vazquez v. CHS Professional Practice,

P.C., 39 A.3d 395, 397 (Pa.Super.2012) (quoting Krapf v. St. Luke's

Hospital, 4 A.3d 642, 649 (Pa.Super.2010)).           “[W]e apply the same

standard as the trial court, reviewing all the evidence of record to determine

whether there exists a genuine issue of material fact.” Harber Philadelphia

Center City Office Ltd. v. LPCI Ltd. Partnership, 764 A.2d 1100, 1103

(Pa.Super.2000), appeal denied, 782 A.2d 546 (Pa.2001).         “We view the

record in the light most favorable to the non-moving party, and all doubts as

to the existence of a genuine issue of material fact must be resolved against

the moving party. Only where there is no genuine issue as to any material
____________________________________________


8
  Although this letter is not signed, Peggy McLaine admits to writing it.
Unemployment Compensation Hearing, October 29, 1992, at 6.



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J-S60032-14


fact and it is clear that the moving party is entitled to a judgment as a

matter of law will summary judgment be entered.” Caro v. Glah, 867 A.2d

531, 533 (Pa.Super.2004) (citing Pappas v. Asbel, 768 A.2d 1089, 1095

(Pa.2001), cert. denied, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802

(2002)). Further:

        Summary judgment is proper “if, after the completion of
        discovery relevant to the motion, including the production
        of expert reports, an adverse party who will bear the
        burden of proof at trial has failed to produce evidence of
        facts essential to the cause of action or defense which in a
        jury trial would require the issues to be submitted to a
        jury.” Pa.R.C.P. 1035.2. Thus, a record that supports
        summary judgment will either (1) show the material facts
        are undisputed or (2) contain insufficient evidence of facts
        to make out a prima facie cause of action or defense and,
        therefore, there is no issue to be submitted to the jury.
        [Grandelli v. Methodist Hosp., 777 A.2d 1138, 1143
        (Pa.Super.2001)]. (citing Pa.R.C.P. 1035.2 Note). “Upon
        appellate review, we are not bound by the trial court's
        conclusions of law, but may reach our own conclusions.”
        Grandelli, supra at 1144.         The appellate Court may
        disturb the trial court’s order only upon an error of law or
        an abuse of discretion. Caro, supra.

Nat'l Cas. Co. v. Kinney, 90 A.3d 747, 752-53 (Pa.Super.2014).

     Generally, in Pennsylvania, there is no common law cause of action

against an employer for termination of an at-will employment relationship.

Krajsa v. Keypunch, Inc., 622 A.2d 355, 358 (Pa.Super.1993) (“an at will

employee may be terminated for good reason, bad reason, or no reason at

all”). An exception to this general rule may exist where the termination of

the at-will employment “threaten[s] the clear mandates of public policy.”

Hunger v. Grand Cent. Sanitation, 670 A.2d 173, 175 (Pa.Super.1996)


                                   - 10 -
J-S60032-14



(internal citations omitted).      Public policy exceptions to the at-will

employment doctrine, however, have been permitted in very limited

circumstances. Rothrock v. Rothrock Motor Sales, Inc., 883 A.2d 511,

515 (Pa.2005).   We observe:

        To state a public policy exception to the at-will-
        employment doctrine, the employee must point to a clear
        public policy articulated in the constitution, in legislation,
        an administrative regulation, or a judicial decision.
        Jacques v. Akzo International Salt, Inc., 619 A.2d 748
        ([Pa.Super.]1993). Furthermore, the stated mandate of
        public policy, as articulated in the constitution, statute, or
        judicial decision, must be applicable directly to the
        employee and the employee’s actions. It is not sufficient
        that the employer’s actions toward the employee are
        unfair. Reese v. Tom Hesser Chevrolet-BMW, 413
        Pa.Super. 168, 604 A.2d 1072 (1992) (fact that employer
        required employee, as condition of continued employment,
        to reimburse it for losses attributable to action of
        employee may have been unfair but did not violate law;
        therefore, employee failed to state public policy exception
        to doctrine of at-will employment); Darlington v.
        General Electric, 504 A.2d 306 ([Pa.Super.1986) (no
        public policy exception to at-will employment doctrine
        found even though employee was discharged unfairly in
        that he was not afforded the opportunity to defend himself
        against allegations of accounting irregularities).

Hunger, supra. at 175-76.

     Pennsylvania recognizes a cause of action for retaliatory discharge for

filing a Workers’ Compensation claim as a public policy exception to the at-

will employment doctrine.       Shick v. Shirey, 716 A.2d 1231, 1237-38

(Pa.1998) (some internal citations omitted).       In Shick v. Shirey, our

Supreme Court held that “a cause of action exists under Pennsylvania law



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for wrongful discharge of an employee who files a claim for workers’

compensation benefits.” Id. at 38. The Court explained:

         [The] historical balance would be disrupted if the employer
         could terminate an employee for filing a workers’
         compensation claim. As the Supreme Court of Indiana
         stated in its decision in Frampton v. Central Indiana
         Gas Company, 260 Ind. 249, 297 N.E.2d 425 (1973),
         which recognized a cause of action for retaliatory discharge
         for filing such claims:

              The [Indiana Workmen’s Compensation] Act creates
              a duty in the employer to compensate employees for
              work-related injuries (through insurance) and a right
              in the employee to receive such compensation. But
              in order for the goals of the Act to be realized and for
              public policy to be effectuated, the employee must
              be able to exercise his right in an unfettered fashion
              without being subject to reprisal. If employers are
              permitted to penalize employees for filing workmen’s
              compensation claims, a most important public policy
              will be undermined. The fear of being discharged
              would have a deleterious effect on the exercise of a
              statutory right. Employees will not file claims for
              justly deserved compensation-opting, instead, to
              continue their employment without incident. The
              end result, of course, is that the employer is
              effectively relieved of his obligation.

         [Frampton, supra.] at 427. This analysis applies as well
         to Pennsylvania’s Workers’ Compensation Act.

Shick, supra. At 1237-38.

      In the instant case, Employers’ motion for summary judgment alleged

Employee “failed to set forth a legally cognizable cause of action for wrongful

discharge.”     Employers’ Motion for Summary Judgment at 3.             Indeed,

Employee would not have a cause of action against Employers for his

termination from at-will employment unless it was a violation of public

                                       - 12 -
J-S60032-14


policy, such as retaliation for filing a Workers’ Compensation claim.

Although Employers contend that the “undisputed and incontrovertible” fact

that the Workers’ Compensation claim was not filed until after Employee had

already been fired precludes the possibility that Employee’s termination of

employment was a retaliation in violation of public policy, a fact finder could

conclude from the timing of Employee’s termination on the same date as he

placed them on notice of his intent to file a Workers’ Compensation claim,

that the firing was indeed retaliatory and a violation of public policy. See

Shick, supra.       Therefore, viewing the evidence in the light most favorable

to Employee, as we must under our proper standard of review, Employers’

contention regarding their reason for termination is not “undisputed and

incontrovertible.”    Thus, the cause for Employee’s termination presents an

issue of material fact. For this reason we find that the trial court erred in

granting summary judgment.9 See Harber, supra.; Caro, supra.




____________________________________________


9
  Based on this determination, we need not address Employee’s remaining
claims.




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J-S60032-14


       Order reversed; case remanded for further proceedings. Jurisdiction is

relinquished.10


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2015




____________________________________________


10
   In light of our disposition, Employee’s various motions pertaining to the
record are dismissed as moot.



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